The New Yorker’s “The Case Against Cash Bail”

It’s obvious that jail isn’t good for the jailed. It may be particularly bad for people accused of minor crimes, who are confined not because they are likely to be dangerous but because, under our cash-bail system, they can’t afford to get out. Think of the appalling case of Kalief Browder, the Bronx teenager who was profiled by my colleague Jennifer Gonnerman, in 2014. He was charged with stealing a backpack and spent three years at Rikers Island awaiting trial. Two years after the trial was dismissed and he was released, Browder killed himself.

Now, there’s a study that quantifies some of the harm of keeping low-risk offenders in jail. Three criminal-justice researchers—Christopher Lowenkamp, Marie VanNostrand, and Alexander Holsinger—with backing from the Arnold Foundation, were able to track more than a hundred and fifty-three thousand arrests and bookings into Kentucky jails, between 2009 and 2010. They published their results in November, 2013, but the study hasn’t gotten the attention it deserves. The researchers found that the longer low-risk defendants were held in jail the more likely they were to engage in criminal activity. “When held 2–3 days, low-risk defendants are almost 40% more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours,” they wrote. Low-risk defendants were even more likely to be re-arrested when they were held eight to fourteen days, and this remained true two years after the conclusion of the original case. Defendants who had been held in jail for eight to fourteen days were fifty-one per cent more likely to commit a crime two years later than demographically similar defendants charged with equivalent crimes who were held no more than twenty-four hours.

How could it be that as few as two additional days in jail could do such damage? It might be that when a low-risk person is crammed in with a more dangerous one—the turnstile jumper with the armed robber—proximity exerts a bad influence on the former without improving the latter. But the researchers say that the real problem is that jail destabilizes lives that are often, and almost by definition, already unstable. It tends to quickly undermine the three mainstays of steady employment, housing, and family attachments. Holsinger, a professor at the University of Missouri, Kansas City, told me: “These are people who might well be working, but in a low-level job, let’s say in the fast-food industry, where they are very easy to replace. If you or I didn’t show up to work for three days without an explanation, it would certainly create problems but we probably wouldn’t get fired.” If you miss three days as a fast-food worker, you’re fired. Low-risk offenders are also more likely to have precarious living situations. “They might be flopping on their sister’s couch, or their friend’s. Their name’s not on the lease. Maybe they’re one argument away from being kicked out on the street,” Holsinger said. Or maybe they’re in a drug-rehab program where not showing up one night means they lose their bed. If they are parents, like one of the subjects of a Times Magazine article this month about the pitfalls of cash bail, they may lose their children while they are behind bars and be consumed with worry about who is taking care of them.

Without support systems in any or all of these categories, people are more likely to get into trouble again.

At the moment, everyone from Bernie Sanders to the Koch brothers is decrying our incarceration rates and calling for criminal-justice reform. Cash bail has been getting particular scrutiny, since it clearly burdens the poor disproportionately, without any greater assurance of public safety. Only a few jurisdictions have replaced bail money with risk assessment, which helps judges decide whether defendants should be let free pending trial or not. But Cherise Fanno Burdeen, the director of the Pretrial Justice Institute, thinks the end of monetized bail is closer than ever thanks to “a giant wave of support” for reducing the number of people behind bars in the United States. (In recent months, the Black Lives Matter movement has had a lot to do with that momentum.) The City of Milwaukee and the State of Kentucky are among a handful of jurisdictions that have cut back on paid bail. Last year, New Jersey voters passed a bail-reform measure that allows judges to release nonviolent offenders on their own recognizance. (It has not escaped voters and legislators that such reforms will potentially save taxpayers’ money.) In June, Jonathan Lippman, New York State’s chief judge, told the Observer that the bail system is “totally ass-backwards in every respect.” Lippman elaborated, “You have people who can’t make $500 bail who end up rotting in jails or prison, losing their jobs, being separated from their families, while they are absolutely no threat to anyone.” Last month, New York Mayor Bill de Blasio announced a new initiative that allows judges to release some low-level defendants, keeping them under court supervision until trial.

The bail-bond industry and commercial surety interests almost certainly will resist reform. As U.S. District Court judge James Carr, a critic of cash bail, said at a congressional briefing in April, it’s “a thriving industry, a very powerful industry, and a very difficult opponent to challenge.” In this conflict, it will be enormously useful to have more studies like Lowenkamp, VanNostrand, and Holsinger’s. “We’re always going to need jails,” Holsinger said. But when we’re thinking about holding people who aren’t dangerous, who may not have committed the crime that they’re charged with, and who may already be in precarious situations, “you have to remember how quickly everything good in their lives can evaporate.”
[The New Yorker article].